Nominations to Article III Lower Courts by President George W. Bush During the 110 th Congress

Orer Coe RL33953 Nominations to Article III Lower Courts by Presient George W. Bush During the 110 th Congress Upate May 30, 2008 Denis Steven Rutkus Specialist on the Feeral Juiciary Government an Finance Division Kevin M. Scott Analyst on the Feeral Juiciary Government an Finance Division Maureen Bearen Information Research Specialist Knowlege Services Group

Nominations to Article III Lower Courts by Presient George W. Bush During the 110 th Congress Summary This report tracks nominations mae by Presient George W. Bush to jugeships on the U.S. courts of appeals, the U.S. istrict courts, an the U.S. Court of International Trae the lower courts on which, pursuant to Article III of the Constitution, juges serve uring goo Behaviour. It lists an keeps count of all nominations mae to these courts uring the 110 th Congress, incluing pertinent actions taken by the Senate Juiciary Committee an the full Senate. It also tracks the number of juicial vacancies on the courts (incluing vacancies classifie by the feeral juiciary as juicial emergencies ), the number of nominations pening to fill the vacancies, an the names of the pening nominees. It presents the number of persons nominate by Presient Bush to each category of lower Article III court uring his entire presiency (breaking own each total to show the number confirme, pening, returne an not re-nominate, an withrawn). Last, it provies a tabular comparison of Presient Bush s lower court nominee statistics with those of the four Presients who immeiately precee him: As of May 28, 2008:! Presient Bush ha nominate 20 iniviuals to the U.S. courts of appeals uring the 110 th Congress, with the Senate having confirme eight of them, an with two withrawn by the Presient.! Presient Bush ha nominate 61 iniviuals to the U.S. istrict courts uring the 110 th Congress, with the Senate having confirme 38 of them, an with one withrawn by the Presient.! There were 11 juicial vacancies on the U.S. courts of appeals, with 10 nominations pening to fill these vacancies.! There were 36 U.S. istrict court vacancies, with 21 nominations pening to fill these jugeships, an an aitional one nomination pening to fill a future istrict court vacancy.! No vacancies ha occurre on the U.S. Court of International Trae uring the 110 th Congress (an thus no nominations have been mae to the court uring the Congress). During the entire presiency of George W. Bush (from January 20, 2001, to May 28, 2008), there have been 352 nominees to Article III lower court jugeships. Of the 352 total nominees, 32 are pening, 302 have receive Senate confirmation, nine have been returne to the Presient in a previous Congress an not resubmitte, an nine have been withrawn by the Presient an not resubmitte. For corresponing information about Presient Bush s appeals an istrict court nominations uring earlier Congresses, see CRS Report RL31868, U.S. Circuit an District Court Nominations by Presient George W. Bush During the 107 th -109 th Congresses, by Denis Steven Rutkus, Kevin M. Scott, an Maureen Bearen. This report will be upate to recor new actions by Presient Bush, the Senate Juiciary Committee, or the Senate involving Article III lower court nominations.

Contents Introuction...1 The Article III Lower Courts...2 Juicial Nomination Data Tracke...3 Juicial Nomination Tables for the 110 th Congress...4 Appenix. The Appointment Process for Nominations to Article III Jugeships...18 List of Tables Table 1. Vacancies in Article III Lower Court Jugeships...5 Table 2. Pening Nominations to the U.S. Courts of Appeals, District Courts, an Court of International Trae in the 110 th Congress...5 Table 3. Presient George W. Bush s Nominations to the U.S. Circuit Courts of Appeals During the 110 th Congress...9 Table 4. Presient George W. Bush s Nominations to the U.S. District Courts During the 110 th Congress...11 Table 5. Presient George W. Bush s Nominations to the U.S. Court of International Trae During the 110 th Congress...15 Table 6. Presient George W. Bush s Nominees to Article III Lower Courts: A Numerical Breakown Accoring to Status of Their Most Recent Nomination...16 Table 7. Article III U.S. District Courts an Courts of Appeals: Number of Nominees, Number Confirme, an Percent of Nominees Confirme, Five Most Recent Presients...17

Nominations to Article III Lower Courts by Presient George W. Bush During the 110 th Congress Introuction Uner Article III of the Constitution of the Unite States, the appointment of iniviuals to lifetime positions on the lower feeral courts (the U.S. courts of appeals, U.S. istrict courts, an U.S. Court of International Trae) requires Senate confirmation. 1 In recent years, Congress has expresse increasing interest in the nomination an confirmation process for lower feeral court juges. 2 During the 110 th Congress, the number of lower court nominations by Presient George W. Bush that have been confirme or are likely to be confirme has been a subject of continuing Senate interest. 3 1 For an overview of the process for appointing lower court juges (an the respective roles playe in that process by the Presient, the Senate Juiciary Committee, an the full Senate), see the Appenix. 2 See, for example, Nancy Scherer, Scoring Points: Politicians, Activists, an the Lower Feeral Court Appointment Process (Stanfor, CA: Stanfor University Press, 2005); Lee Epstein an Jeffrey A. Segal, Avice an Consent: The Politics of Juicial Appointments (New York: Oxfor University Press, 2005); Shelon Golman, Juicial Confirmation Wars: Ieology an the Battle for the Feeral Courts, University of Richmon Law Review, vol. 39, March 2005, pp. 871-908; Stephen B. Burbank, Politics, Privilege & Power: The Senate s Role in the Appointment of Feeral Juges, Juicature, vol. 86, July-August 2002, pp. 24-27; an Elliot E. Slotnick, A Historical Perspective on Feeral Juicial Selection, Juicature, vol. 86, July-August 2002, pp. 13-16. 3 On April 15, 2008, for instance, in a colloquy on the Senate floor, the Senate Democratic majority leaer an the Senate Republican leaer iscusse the number of nominations to the U.S. circuit courts of appeals which might be expecte to be confirme in the 110 th Congress before Memorial Day, May 26, 2008. The majority leaer, Sen. Harry Rei of Nevaa, state that he an the chairman of Senate Juiciary Committee, Sen. Patrick J. Leahy of Vermont, are going to o everything we can to approve three circuit court juges by Memorial Day. He state, however, that [a]fter June, we will have to take a real close look at juges in a Presiential election year. The Republican leaer, Sen. Mitch McConnell of Kentucky, note that an average of 17 circuit court nominations receive Senate confirmation uring the last two years of the three previous presiencies. In the 110 th Congress, he sai, we are running ramatically behin, with only seven circuit court nominations confirme thus far, which he sai was a paltry number in comparison to how Presient Reagan, Presient [George H. W.] Bush, an Presient Clinton were hanle in a similar situation. Sen. Harry Rei an Sen. Mitch McConnell, remarks in the Senate, Congressional Recor, aily eition, vol. 154, April 15, 2008, pp. S3012-S3014. Between April 15 an May 28, 2008, the Senate (on May 20) confirme one more circuit court of (continue...)

CRS-2 To provie Congress with a current overview of the lower court appointment process, this report tracks the status of certain lower court nominations mae by Presient George W. Bush uring the 110 th Congress. The report eals primarily with nominations to lower Article III courts (those courts on which juges serve uring goo Behaviour ), while also accounting for infrequent nominations to the small number of territorial istrict jugeships, which have fixe-term appointments. 4 The Article III Lower Courts Article III, Section 1 of the Constitution provies, in part, that the juicial Power of the Unite States shall be veste in one supreme Court, an in such inferior Courts as the Congress may from time to time orain an establish. It further provies that justices on the Supreme Court an juges on lower courts establishe by Congress uner Article III have what effectively has come to mean life tenure, holing their office uring goo Behaviour. 5 By contrast, juges in various feeral courts establishe by Congress uner Article I of the Constitution are appointe for fixe terms. 6 Along with the Supreme Court, the courts that constitute the Article III courts in the feeral juicial system are the U.S. courts of appeals, the U.S. istrict courts, an the U.S. Court of International Trae. The following are thumbnail escriptions of each of the lower Article III courts: The U.S. Courts of Appeals. These courts take appeals from feeral trial court ecisions an are empowere to review the ecisions of many aministrative agencies. Cases presente to these courts are generally consiere by juges sitting in three-member panels. Altogether, 178 permanent appellate court jugeships are authorize by law. 7 Courts within the courts of appeals system are often calle circuit courts, because they are ivie into 12 geographic circuits an an 3 (...continue) appeals nominee, bringing to eight the total number confirme thus far in the 110 th Congress. 4 For a etaile narrative an statistical analysis of Presient George W. Bush s lower court nominations uring the first six years of his presiency, see CRS Report RL31868, U.S. Circuit an District Court Nominations by Presient George W. Bush During the 107 th -109 th Congresses, by Denis Steven Rutkus, Kevin M. Scott, an Maureen Bearen. 5 Pursuant to this constitutional language, Article III juges may hol office for as long as they live or until they voluntarily leave office. A Presient has no power to remove them from office. Article III juges may be remove by Congress only through the process of impeachment by the House an conviction by the Senate. 6 Citing the power to o so in Article I of the Constitution, Congress, in separate statutes, has create four courts of specialize subject matter jurisiction the U.S. Court of Feeral Claims, the U.S. Tax Court, the U.S. Court of Appeals for Veterans Claims, an the Court of Appeals for the Arme Forces an has authorize 15-year juicial tenure in these courts. 7 On January 7, 2008, Presient George W. Bush signe H.R. 660, the Court Security Improvement Act of 2007 (P.L. 110-77, 121 Stat. 2534). Among other things, the act ecrease the number of jugeships in the D.C. Circuit Court of Appeals from 12 to 11 an, effective January 21, 2009, increase the number of jugeships on the Ninth Circuit Court of Appeals from 28 to 29. Accoringly, there are 178 jugeships on the courts of appeals until January 21, 2009, when, barring any other ajustment, that number will rise to 179.

CRS-3 aitional nationwie circuit, the Feeral Circuit, which has specialize subject matter jurisiction. In this report, nominations to U.S. courts of appeals jugeships are, at various points, also referre to as circuit court nominations. The U.S. District Courts. These are the trial courts of general feeral jurisiction. Each state has at least one istrict court, while some states have as many as four. There are 674 istrict court jugeships authorize by law, incluing those for the District of Columbia an the Commonwealth of Puerto Rico. 8 The U.S. Court of International Trae. This court has original an exclusive jurisiction over civil actions against the Unite States, its agencies an officers, an certain civil actions brought by the Unite States arising out of import transactions an feeral statutes affecting international trae. The court is compose of nine juges, no more than five of whom may belong to one political party. Congress also has establishe istrict courts in the territories of Guam, the U.S. Virgin Islans, an the Northern Mariana Islans. Like the U.S. istrict courts, the territorial courts are trial courts of general feeral jurisiction, while also having jurisiction over many local matters that, within the 50 states, are hanle in state courts. Because they are trial courts of general feeral jurisiction, whose rulings may be appeale to a U.S. court of appeals, 9 the territorial courts can be viewe as a category of court falling within the feeral istrict court system. 10 Territorial courts, however, are not Article III courts, an juicial appointees to these courts serve 10-year terms, with one jugeship each in Guam an the Northern Mariana Islans, an two in the Virgin Islans. Juicial Nomination Data Tracke This report lists an keeps count of all nominations mae to the above-iscusse courts uring the 110 th Congress, incluing certain actions taken on these 8 The 674 total consists of 663 permanently authorize jugeships an 11 temporary jugeships (which, pursuant to statute, temporarily increase the number of jugeships for specifie juicial istricts. These istricts revert back to the permanently authorize number of jugeships at a future time fixe by the statute typically, when, after a specifie number of years, a jugeship in the istrict is vacate). 9 Decisions of the U.S. District Courts for the District of Guam an the District of the Northern Mariana Islans are appeale to the Ninth Circuit Court of Appeals. Decisions of the U.S. District Court for the District of Virgin Islans are appeale to the Thir Circuit Court of Appeals. 10 For instance, the feeral juiciary subsumes territorial courts uner the heaing of District Courts in various places on its website, at [http://www.uscourts.gov]. In one link on the website, entitle Authorize Jugeships, accesse via [http://www.uscourts.gov/ juicialvac.html], the juiciary lists the number of authorize jugeships, respectively, on the Supreme Court, the circuit courts, the istrict courts, an the Court of International Trae. The link, uner the heaing of District Courts, provies an Article III subheaing (with 674 jugeships) an a Territorial Court sub-heaing (with 4 jugeships), an, in an ajacent column, 678 is shown to be total number of jugeships for the District Courts heaing.

CRS-4 nominations by the Senate Juiciary Committee an the full Senate. The report also provies statistics for all of the nominations that Presient Bush has mae to these courts uring his entire presiency, starting with the 107 th Congress in January 2001 an carrying through to the present. (Thus far in the 110 th Congress, no nominations have been mae either to the U.S. Court of International Trae or to the territorial istrict courts, although Presient Bush mae, an the Senate confirme, nominations to these courts uring previous Congresses.) In the following pages, Presient Bush s nominations to the lower Article III courts are liste or counte in Tables 1 through 6. Some of these tables, where note, also keep track of nominations mae to the territorial courts. Appenix 1 provies a brief textual overview of the principal steps in the process for appointing lower court juges. Juicial Nomination Tables for the 110 th Congress Table 1 is a juicial vacancy table. For each type of Article III lower court circuit, istrict, an Court of International Trae it shows the number of jugeships vacant as of the ate liste, as well as the number of nominations pening to fill those jugeships. Table 1 also isplays the number of nominations pening to fill future vacancies, which occur when juges in active service announce their retirement to occur on a ate that has not yet been reache or when a juge in active service inicates a plan to retire or take senior status upon the confirmation of a successor. In aition, Table 1 shows how many of these vacancies are classifie by the feeral juiciary as juicial emergencies. For the courts of appeals, a juicial emergency is any vacancy in a circuit where there are more than 700 ajuste filings per panel, or any vacancy in a circuit that has existe for more than 18 months an where ajuste filings are between 500 to 700 per panel. 11 For a istrict court, a juicial emergency is any vacancy in a istrict where weighte filings excee 600 per jugeship, or any vacancy in existence more than 18 months where weighte filings are between 430 an 600 per jugeship, or any court with more than one authorize jugeship an only one active juge. 12 11 Ajuste filings eliminate reinstate cases an weight pro se appeals as one-thir of a case. All other cases have a weight of one. The number of ajuste filings in a given year is then ivie by the number of three-juge panels on a circuit (e.g., a circuit with 7 authorize jugeships has 2.33 panels). Ajuste filings ata are upate every three months. 12 Weighte filings use a system evelope by the Feeral Juicial Center to account for how much of a juge s time each case type shoul take. Like ajuste filings ata, it is an annual measure of court workloa upate every three months. Accoring to the Aministrative Office for the Unite States Courts, average civil cases or criminal efenants each receive a weight of approximately 1.0; for more time-consuming cases, higher weights are assesse (e.g., a eath-penalty habeas corpus case is assigne a weight of 12.89); an cases emaning relatively little time from juges receive lower weights (e.g., a efaulte stuent loan case is assigne a weight of 0.031). See [http://www.uscourts.gov/

CRS-5 Table 1. Vacancies in Article III Lower Court Jugeships (as of May 28, 2008) Court Vacancies Nominations Pening For Existing Vacancies For Future Vacancies Juicial Emergencies Number Nominees Pening U.S. Courts of Appeals U.S. District Courts U.S. Court of International Trae 11 10 0 8 7 36 21 1 8 6 0 0 0 0 0 Total 47 31 1 16 13 Source: CRS analysis of ata provie by the Aministrative Office for the Unite States Courts, available at [http://www.uscourts.gov/juicialvac.html]. Table 2, which lists pening nominations, presents all Article III lower court nominations mae uring the 110 th Congress that were pening as of the ate liste. The table shows the ate each nomination was receive by the Senate, the ate of any hearing on the nomination before the Juiciary Committee, an the ate of any vote by the committee to report the nomination to the Senate. The table also inicates which nominations in the list are renominations persons nominate to the same jugeship either earlier in the 110 th Congress or in a previous Congress. Table 2. Pening Nominations to the U.S. Courts of Appeals, District Courts, an Court of International Trae in the 110 th Congress (as of May 28, 2008) Date No. Name of Nominee Court Receive by Senate Hearing Circuit Courts of Appeals 1 Keisler, Peter D. a D.C. 1/9/07 b 2 Kethlege, Raymon M. a Sixth 3/19/07 5/7/08 3 Conra, Robert J., Jr. Fourth 7/17/07 4 Stone, Shalom D. Thir 7/17/07 5 Matthews, Steve A. Fourth 9/6/07 6 Pratter, Gene E.K. Thir 11/15/07 7 Rosenstein, Ro J. Fourth 11/15/07 8 Smith, William E. First 12/6/07 9 White, Helene N. Sixth 4/15/08 5/7/08 Committee Action 12 (...continue) library/fcmstat/cmsexpl06.html].

CRS-6 Date No. Name of Nominee Court Receive by Committee Hearing Senate Action 10 Conra, Glen E. Fourth 5/8/08 District Courts 1 Farr, Thomas Alvin a E.NC 1/9/07 2 Rogan, James E. a C.CA 1/9/07 3 Dugas, Davi R. M.LA 3/19/07 4 Honaker, Richar H. WY 3/19/07 2/12/08 5 Powell, William J. N.WV 5/24/07 6 Puryear, Gustavus A., IV M.TN 6/13/07 2/12/08 7 Almon, Lincoln D. RI 11/15/07 8 Davis, Mark S. E.VA 11/15/07 4/3/08 4/24/08 9 Kays, Davi G. W.MO 11/15/07 4/3/08 4/24/08 10 Novak, Davi J. E.VA 11/15/07 4/3/08 11 Short, Carolyn P. E.PA 11/15/07 12 Limbaugh, Stephen N., Jr E.MO 12/6/07 4/3/08 4/24/08 13 Snow, G. Murray AZ 12/11/07 5/1/08 5/22/08 14 Suaby, Glenn T. N.NY 12/11/07 15 Lawrence, William T. S.IN 2/14/08 5/1/08 5/22/08 16 Connolly, Colm F. DE 2/26/08 17 Matsumoto, Kiyo A. E.NY 3/11/08 18 Seibel, Cathy S.NY 3/11/08 19 Murphy, Stephen J., III E.MI 4/15/08 5/7/08 20 Garephe, Paul G. S.NY 4/29/08 21 Waoups, Clark UT 4/29/08 22 Anello, Michael M. S.CA 4/30/08 Court of International Trae (There are no pening nominations to the Court of International Trae.) Source: CRS Juicial Nominations Database a. Renomination of an iniviual first nominate in the 109 th Congress (2005-2006). b. The iniviual receive a hearing in the 109 th Congress on a nomination to the same position. Tables 3 an 4 list all nominations to the circuit courts of appeals an to the istrict courts, respectively, mae by Presient Bush uring the 110 th Congress, as of the ate liste, an any actions taken on the nominations. 13 The nominations are liste in chronological orer accoring to the ate on which each was receive by the Senate. The tables show how far along each nomination has progresse in the appointment process, with separate columns inicating the ate on which any of the following occurre: 13 In the event any nominations are mae to the territorial istrict courts, they will be liste in Table 4, an treate as falling within the category of istrict court nominations, even though, as iscusse above, they are not Article III court nominations. Thus far uring the 110 th Congress, no nominations have been mae to the territorial courts.

CRS-7! the Juiciary Committee hel a hearing on the nomination,! the committee vote to report or take other action on the nomination, or! final action was taken on the nomination. When final action has occurre on a nomination, the nature of the action is inicate in another column, uner the heaing Disposition. (For each nomination, one of four kins of isposition is possible confirmation by the Senate, return of the nomination to the Presient, withrawal by the Presient, an rejection by the Senate. During George W. Bush s presiency, however, the Senate has never vote to reject a juicial nomination.) An aitional column, for nominations receiving a Senate confirmation vote, inicates whether the vote was by roll call (by supplying the roll call tally) or by voice vote. A final column in Tables 3 an 4 presents time-span information for nominations having receive final action in the 110 th Congress. Specifically, for each such nomination, the column measures the number of ays that elapse between a nominee s first nomination to a particular court an the final action on this (the most recent) nomination. In some cases, a nominee has been nominate only once by Presient Bush for a jugeship, an the time span measure for such a nominee in the final column in Tables 3 an 4 is the number of ays that elapse between the ate uring the 110 th Congress that the nomination was receive in the Senate an the ate it receive final action. However, in other cases, a juicial nominee in the 110 th Congress has been nominate more than once, with one or more nominations of that person having been mae in an earlier Congress. For such a nominee, the final column in Tables 3 an 4 measures the number of ays that elapse between the nominee s first nomination in the earlier Congress an the ate that the nominee s nomination in the 110 th Congress receive final action. 14 Table 3 shows that, thus far in the 110 th Congress, Presient Bush has nominate 20 iniviuals to circuit court jugeships, 15 eight of whom have been confirme by the Senate, an the nominations of two were withrawn by the Presient. Table 4 shows that, thus far in the 110 th Congress, the Presient has nominate 61 iniviuals to istrict court jugeships. Of those 61, 38 have been confirme, an the nomination of one was withrawn by the Presient. Table 5, for the present, is an empty table, which exists to account for any future nominations that Presient Bush might make to the U.S. Court of International Trae. (Thus far uring the 110 th Congress, no nominations have been mae to this 14 In the event a person were nominate for the first time to a jugeship uring the 110 th Congress, only to be re-nominate uring the 110 th Congress, the final column in Tables 3 an 4 woul show, in the row for the nominee s last nomination, the time elapse between ate of first nomination an ate of final action on the last nomination. 15 While Table 3 lists 21 nominations to the courts of appeals, the number of persons nominate is 20. The 21 nominations inclue two of the same person, N. Rany Smith. As Table 3 shows, Smith s first nomination in the 110 th Congress to a particular seat on the Ninth Circuit was withrawn on the same ay that he was renominate for a ifferent Ninth Circuit seat.

CRS-8 court.) The table is of the same format as Tables 3 an 4. Accoringly, in the event any nominations are mae to the court, the table will list actions on the nominations by the Juiciary Committee an the Senate, any other final action taken, an number of ays elapse between the ate of nomination an ate of final action.

CRS-9 Table 3. Presient George W. Bush s Nominations to the U.S. Circuit Courts of Appeals During the 110 th Congress (January 3, 2007 - May 28, 2008) No. Name of Nominee State Court Nomination Receive 1 Hariman, Thomas M. c PA Thir 1/9/07 2 Keisler, Peter D. c MD D.C. 1/9/07 Hearing e e Date Committee Action Final Action Disposition Vote a First Nomination Days Elapse, to Final Action b 3/8/07 3/15/07 Confirme 95-0 183 3 Livingston, Debra A. c NY Secon 1/9/07 4/11/07 5/3/07 5/9/07 Confirme 91-0 315 4 Smith, N. Rany c ID Ninth 1/9/07 e 1/16/07 Withrawn 5 Southwick, Leslie MS Fifth 1/9/07 5/10/07 8/2/07 10/24/07 Confirme 59-38 288 6 Smith, N. Rany c ID Ninth 1/16/07 e 2/8/07 2/15/07 Confirme 94-0 426 7 Kethlege, Raymon M. c MI Sixth 3/19/07 5/7/08 8 Murphy, Stephen J., III c MI Sixth 3/19/07 4/15/08 Withrawn 657 9 Elro, Jennifer W. TX Fifth 3/29/07 7/19/07 9/20/07 10/4/07 Confirme Voice 189 10 Conra, Robert J., Jr. NC Fourth 7/17/07 11 Haynes, Catharina TX Fifth 7/17/07 2/21/08 4/3/08 4/10/08 Confirme Voice 268 12 Stone, Shalom D. NJ Thir 7/17/07 13 Tiner, John D. IN Seventh 7/17/07 9/25/07 11/1/07 12/18/07 Confirme 93-0 154 14 Matthews, Steve A. SC Fourth 9/6/07 15 Getchell, E. Duncan, Jr. VA Fourth 9/6/07 1/23/08 Withrawn 139 16 Pratter, Gene E.K. PA Thir 11/15/07 17 Rosenstein, Ro J. MD Fourth 11/15/07

CRS-10 No. Name of Nominee State Court Nomination Receive Hearing Date Committee Action Final Action Disposition Vote a First Nomination Days Elapse, to Final Action b 18 Smith, William E. RI First 12/6/07 19 Agee, G. Steven VA Fourth 3/13/08 5/1/08 5/12/08 5/20/08 Confirme 96-0 68 20 White, Helene N. MI Sixth 4/15/08 5/7/08 21 Conra, Glen E. VA Fourth 5/8/08 Source: CRS Juicial Nominations Database Notes: a. A numerical tally inicates a Senate roll call vote on confirmation (the yeas followe by the nays). Voice inicates that the Senate confirme the nomination by voice vote. b. For iniviuals nominate in a previous Congress, the values isplaye in this column report the number of ays which elapse between the ate of the first nomination an the ate of the final action on the most recent nomination in the 110 th Congress. c. Renomination of an iniviual first nominate in the 109 th Congress (2005-2006).. Smith was withrawn as a nominee for a seat vacate by Stephen Trott an renominate, the same ay, for a seat vacate by Thomas Nelson. e. The iniviual receive a hearing in the 109 th Congress on a nomination to the same position. For aitional information, see Appenices 1 an 4 in CRS Report RL31868, U.S. Circuit an District Court Nominations by Presient George W. Bush During the 107 th -109 th Congresses, by Denis Steven Rutkus, Kevin M. Scott, an Maureen Bearen.

CRS-11 Table 4. Presient George W. Bush s Nominations to the U.S. District Courts During the 110 th Congress (January 3, 2007 - May 28, 2008) No. Name of Nominee Court Nomination Receive Hearing Date Committee Action Final Action Disposition Vote a First Nomination Days Elapse, to Final Action b 1 Bailey, John P. c N.WV 1/9/07 2/6/07 3/1/07 3/15/07 Confirme Voice 260 2 Baker, Valerie L. c C.CA 1/9/07 1/25/07 2/1/07 Confirme Voice 273 3 Bryant, Vanessa L. c CT 1/9/07 3/8/07 3/28/07 Confirme Voice 427 4 Donohue, Mary O. c N.NY 1/9/07 9/6/07 Withrawn 435 5 Farr, Thomas A. c E.NC 1/9/07 6 Fischer, Nora B. c W.PA 1/9/07 2/8/07 2/14/07 Confirme 97-0 216 7 Frizzell, Gregory K. c N.OK 1/9/07 1/25/07 2/1/07 Confirme 99-0 239 8 Gutierrez, Philip S. c C.CA 1/9/07 1/25/07 1/30/07 Confirme 97-0 281 9 Howar, Marcia M. c M.FL 1/9/07 2/8/07 2/15/07 Confirme 93-0 253 10 Jarvey, John A. c S.IA 1/9/07 2/8/07 3/8/07 Confirme 95-0 253 11 Kapala, Freerick J. c N.IL 1/9/07 3/13/07 4/25/07 5/8/07 Confirme 91-0 154 12 Lioi, Sara E. c N.OH 1/9/07 2/8/07 3/8/07 Confirme Voice 238 13 Mauskopf, Rosslyn R. c E.NY 1/9/07 4/11/07 7/19/07 10/4/07 Confirme Voice 428 14 O Gray, Liam c E.VA 1/9/07 5/10/07 5/24/07 7/9/07 Confirme 88-0 341 15 O Neill, Lawrence J. c E.CA 1/9/07 1/25/07 2/1/07 Confirme 97-0 183 16 Osteen, William L., Jr. c M.NC 1/9/07 6/20/07 7/19/07 9/10/07 Confirme 90-0 346 17 Ozeren, Halil S. c S.MS 1/9/07 3/13/07 4/12/07 4/24/07 Confirme 95-0 231

CRS-12 No. Name of Nominee Court Nomination Receive Hearing Date Committee Action Final Action Disposition Vote a First Nomination Days Elapse, to Final Action b 18 Reiinger, Martin K. c W.NC 1/9/07 6/20/07 7/19/07 9/10/07 Confirme Voice 346 19 Rogan, James E. c C.CA 1/9/07 20 Schroeer, Thomas D. c M.NC 1/9/07 10/24/07 11/15/07 12/14/07 Confirme Voice 441 21 Settle, Benjamin H. c W.WA 1/9/07 3/13/07 4/25/07 6/28/07 Confirme 99-0 225 22 Van Bokkelen, Joseph S. N.IN 1/9/07 4/11/07 5/3/07 6/28/07 Confirme Voice 170 23 Woo, Lisa G. c S.GA 1/9/07 1/25/07 1/30/07 Confirme 97-0 232 24 Wright, Otis D., II c C.CA 1/9/07 2/6/07 3/1/07 3/15/07 Confirme Voice 191 25 Wu, George H. c C.CA 1/9/07 2/6/07 3/1/07 3/27/07 Confirme 96-0 203 26 DeGiusti, Timothy D. W.OK 2/15/07 6/20/07 7/19/07 8/3/07 Confirme 96-0 169 27 Sullivan, Richar S.NY 2/15/07 4/11/07 5/3/07 6/28/07 Confirme 99-0 133 28 Aycock, Sharion N.MS 3/19/07 7/19/07 9/6/07 10/4/07 Confirme Voice 199 29 Dugas, Davi R. M.LA 3/19/07 30 Hall, James R. S.GA 3/19/07 2/12/08 3/6/08 4/10/08 Confirme Voice 388 31 Honaker, Richar H. WY 3/19/07 2/12/08 32 Jones, Richar A. W.WA 3/19/07 7/19/07 9/6/07 10/4/07 Confirme Voice 199 33 Jonker, Robert J. c W.MI 3/19/07 6/7/07 7/9/07 Confirme Voice 376 34 Maloney, Paul L. c W.MI 3/19/07 5/24/07 7/9/07 Confirme Voice 376 35 Neff, Janet T. c W.MI 3/19/07 5/10/07 5/24/07 7/9/07 Confirme 83-4 376 36 Sammartino, Janis L. S.CA 3/19/07 6/20/07 7/19/07 9/10/07 Confirme 90-0 175

CRS-13 No. Name of Nominee Court Nomination Receive Hearing Date Committee Action Final Action Disposition Vote a First Nomination Days Elapse, to Final Action b 37 Powell, William J. N.WV 5/24/07 38 Thapar, Amul R. E.KY 5/24/07 10/24/07 11/15/07 12/13/07 Confirme Voice 203 39 Laplante, Joseph N. NH 6/13/07 10/24/07 11/15/07 12/14/07 Confirme Voice 184 40 Puryear, Gustavus A., IV M.TN 6/13/07 2/12/08 41 O Connor, Ree C. N.TX 6/27/07 10/24/07 11/15/07 11/16/07 Confirme Voice 142 42 Dow, Robert M., Jr. N.IL 7/18/07 9/25/07 10/4/07 11/13/07 Confirme 86-0 118 43 Anerson, Stanley T. W.TN 9/6/07 2/21/08 3/6/08 4/10/08 Confirme Voice 217 44 Menez, John A. E.CA 9/6/07 2/21/08 3/6/08 4/10/08 Confirme Voice 217 45 Miller, Brian S. E.AR 10/16/07 2/12/08 3/6/08 4/10/08 Confirme 88-0 177 46 Almon, Lincoln D. RI 11/15/07 47 Davis, Mark S. E.VA 11/15/07 4/3/08 4/24/08 48 Kays, Davi G. W.MO 11/15/07 4/3/08 4/24/08 49 Novak, Davi J. E.VA 11/15/07 4/3/08 50 Short, Carolyn P. E.PA 11/15/07 51 Limbaugh, Stephen N., Jr. E.MO 12/6/07 4/3/08 4/24/08 52 Snow, G. Murray AZ 12/11/07 5/1/08 5/22/08 53 Suaby, Glenn T. N.NY 12/11/07 54 Lawrence, William T. S.IN 2/14/08 5/1/08 5/22/08 55 Connolly, Colm F. DE 2/26/08

CRS-14 No. Name of Nominee Court Nomination Receive Hearing Date Committee Action Final Action Disposition Vote a First Nomination Days Elapse, to Final Action b 56 Matsumoto, Kiyo A. E.NY 3/11/08 57 Seibel, Cathy S.NY 3/11/08 58 Murphy, Stephen J., III E.MI 4/15/08 5/7/08 59 Garephe, Paul G. S.NY 4/29/08 60 Waoups, Clark UT 4/29/08 61 Anello, Michael M. S.CA 4/30/08 Source: CRS Juicial Nominations Database a. A numerical tally inicates a Senate roll call vote on confirmation (the yeas followe by the nays). Voice inicates that the Senate confirme the nomination by voice vote. b. For iniviuals nominate in a previous Congress, the values isplaye in this column report the number of ays which elapse between the ate of the first nomination an the ate of the final action on the most recent nomination in the 110 th Congress. c. Renomination of an iniviual first nominate in the 109 th Congress (2005-2006).. The iniviual receive a hearing in the 109 th Congress on a nomination to the same position. For aitional information, see Appenices 5 an 8 in CRS Report RL31868, U.S. Circuit an District Court Nominations by Presient George W. Bush During the 107 th -109 th Congresses, by Denis Steven Rutkus, Kevin M. Scott, an Maureen Bearen.

CRS-15 Table 5. Presient George W. Bush s Nominations to the U.S. Court of International Trae During the 110 th Congress (January 3, 2007 - May 28, 2008) Date Days Elapse, First No. Name of Nominee State Court Nomination Committee Nomination to Final Hearing Final Action Receive Action Action Thus far, uring the 110 th Congress, there have been no nominations to this court. Source: CRS Juicial Nominations Database

CRS-16 Table 6 presents the total number of persons nominate by Presient Bush to each category of lower Article III court uring his entire presiency. The table also breaks own each numerical total, showing, as of the ate liste, the number of nominees whose most recent nominations were (1) confirme; (2) pening in the Senate; (3) returne to the Presient, at the en of a Congress or at the start of a Senate recess of more than 30 ays, an not re-submitte; or (4) withrawn by the Presient. This table counts nominees to a particular jugeship only once, even if they were nominate to their jugeship more than once. 16 Table 6. Presient George W. Bush s Nominees to Article III Lower Courts: A Numerical Breakown Accoring to Status of Their Most Recent Nomination (January 20, 2001 - May 28, 2008) Court Confirme Pening Returne, Not Renominate Withrawn Total Courts of Appeals 59 10 8 5 82 District Courts a 241 22 1 4 268 Court of International Trae 2 0 0 0 2 Total 302 32 9 9 352 Source: CRS Juicial Nominations Database a. Does not inclue three nominees to the territorial istrict courts, all of whom were confirme prior to the 110 th Congress. Juges on those courts are appointe to renewable 10-year terms. There have been no nominations to the territorial istrict courts in the 110 th Congress. Table 7 places the juicial nominee numbers of the George W. Bush presiency in the context of the last five Presients. Comparison of the nominee statistics of the two-term Presients in this group (Reagan, Clinton, an George W. Bush) reveal the following. The percentages of George W. Bush s nominees confirme to the circuit courts an istrict courts (72.0% an 89.9%, respectively, as of May 28, 2008) are relatively close to the confirmation percentages for the Clinton nominees (72.2% for circuit courts an 87.1% for istrict courts), but well below those for Reagan nominees (88.3% for circuit courts an 94.8% for istrict courts). The number of Bush nominees confirme to the circuit courts (59) is somewhat below the number of confirme Clinton circuit nominees (65) an well below the number of confirme Reagan circuit nominees (83), while the number of Bush nominees confirme to the istrict courts (241) is well below the confirme istrict court nominee numbers of both Presients Clinton an Reagan (305 an 290, respectively). 16 Some of Presient Bush s nominees were nominate to a circuit or istrict jugeship more than once within a Congress, or nominate to the jugeship in more than one Congress. For a listing of these nominees, as well as other Presients nominees to the circuit an istrict courts whose nominations were resubmitte from 1977 through 2006, See CRS Report RL33839, Returns an Resubmissions of Nominees to the U.S. Courts of Appeals an District Courts, 1977-2006, by Kevin M. Scott.

CRS-17 Table 7. Article III U.S. District Courts an Courts of Appeals: Number of Nominees, Number Confirme, an Percent of Nominees Confirme, Five Most Recent Presients (as of May 28, 2008) Court of Appeals District Courts a Total b Presient Confirme Nominees Percent Confirme Nominees Percent Confirme Nominees Percent Jimmy Carter 56 60 93.3% 202 218 92.7% 258 278 92.8% Ronal Reagan 83 94 88.3% 290 306 94.8% 373 400 93.3% George H.W. Bush 42 53 79.2% 148 191 77.5% 190 244 77.9% Bill Clinton 65 90 72.2% 305 350 87.1% 370 440 84.1% George W. Bush (through May 28, 2008) 59 82 72.0% 241 268 89.9% 300 350 85.7% Source: CRS Juicial Nominations Database Notes: a. The istrict court columns of this table account only for nominees to Article III istrict court jugeships, an not those to territorial istrict courts in the U.S. Virgin Islans, Guam, an the Northern Mariana Islans. As a result, the numbers in these columns iffer somewhat from the istrict court ata presente in Table 3 of CRS Report RL31868, U.S. Circuit an District Court Nominations by Presient George W. Bush During the 107th-109th Congresses, which account for nominees to the territorial courts. b. Does not inclue nominations to the Court of International Trae (an Article III Court since 1980). c. Through May 28, 2008.

CRS-18 Appenix. The Appointment Process for Nominations to Article III Jugeships Uner the Constitution of the Unite States, the Presient an the Senate share the responsibility for filling vacancies in the feeral juiciary. 17 While it is the Presient who nominates persons to fill feeral jugeships, the appointment of each nominee also requires Senate confirmation. Although not mentione in the Constitution, the Senate Juiciary Committee also plays an important role miway in the process after the Presient selects, but before the Senate as a whole consiers, the nominee. It is the Juiciary Committee in the Senate that has committee jurisiction over most feeral juicial nominations namely, those to the Supreme Court, the courts of appeals, the istrict courts (incluing the territorial istrict courts), the U.S. Court of International Trae, an the U.S. Court of Feeral Claims. 18 The nee for the Presient to make a nomination to an Article III court jugeship arises when a vacancy occurs on the court, ue to the eath, retirement, or resignation of a juge (or when a juge announces the intention to retire or resign). 19 In consiering juicial caniates for possible nomination, the Presient frequently receives recommenations from U.S. Senators. 20 By longstaning custom, ating back to the mi-1800s, Senators of the Presient s party have provie Presients such avice, recommening caniates for jugeships situate in their states or linke by traition to their states. 21 Also by custom, Senators not of the Presient s 17 Article II, Section 2, clause 2 of the Constitution provies that the Presient shall nominate, an by an with the Avice an Consent of the Senate, shall appoint... Juges of the supreme Court, an all other Officers of the Unite States, whose Appointments are not herein otherwise provie for, an which shall be establishe by Law... 18 Nominations to the Court of Appeals for the Arme Forces fall within the jurisiction of the Senate Arme Services Committee; nominations to the U.S. Tax Court fall within the Jurisiction of the Senate Finance Committee; an nominations to the Court of Appeals for Veterans Claims fall within the jurisiction of the Senate Veterans Affairs Committee. 19 A vacancy also woul occur if a juge were remove by Congress through the impeachment process, but historically such occurrences have been extremely rare. Specifically, in our nation s history, there have been 15 impeachment trials in the Senate, 11 against juges. Seven trials have resulte in convictions, all against juges. CRS Report RL32935, Congressional Oversight of Juges an Justices, by Elizabeth B. Bazan an Morton Rosenberg. 20 See CRS Report RL34405, Role of Home State Senators in the Selection of Lower Feeral Court Juges, by Denis Steven Rutkus. 21 A scholar on the Senate s role in juicial appointments, writing in 1953, escribe the well-establishe custom, which has prevaile since about 1840, wherein U.S. istrict juges are normally selecte by senators from the state in which the istrict is situate, provie they belong to the same party as the Presient. By contrast, the Presient was sai to have a much freer han in the selection of juges to the circuit courts of appeals, whose istricts cover several states... Joseph P. Harris, The Avice an Consent of the Senate (Berkeley, CA: University of California Press, 1953; reprint, New York: Greenwoo Press, 1968), p. 314, (page citations are to the reprint eition). See also, for more recent (continue...)

CRS-19 party play a consultative role an may convey to the Presient their views about caniates uner consieration for jugeships in their states. 22 The jugeships for which a Senator orinarily recommens nominees, or is consulte, are those in the U.S. istrict court or courts which geographically fall within the Senator s state an the U.S. court of appeals circuit of which the Senator s state is a geographic part provie the circuit jugeship historically has been associate with the Senator s state. 23 After selecting someone to fill a juicial vacancy, the Presient formally submits a nomination in writing to the Senate. 24 Usually on the same ay it is receive by the Senate, the nomination is referre to the Juiciary Committee. The committee s first formal public step is to hol a hearing on a nomination. The committee subsequently meets again to vote on whether to report the nomination to the full Senate. A committee vote to report (even a vote to report with an unfavorable recommenation) sens the nomination forwar to be consiere by the Senate as a whole, while a vote against reporting (historically, a very rare occurrence) prevents the nomination from going forwar, an in effect efeats the nomination in committee. The next step in the appointment process occurs when the Senate votes to confirm or isapprove the nomination. A vote to confirm requires a simple majority of Senators present an voting. 21 (...continue) iscussion of the continuing role playe by Senators in recommening juicial caniates, Shelon Golman, Picking Feeral Juges: Lower Court Selection from Roosevelt Through Reagan (New Haven, CT: Yale University Press, 1997) (in each presiency chapter, uner the heaing Senators an Selection ). 22 See CRS Report RL32013, The History of the Blue Slip in the Senate Committee on the Juiciary, 1917-Present, by Mitchel A. Sollenberger. See also Elliot E. Slotnick, A Historical Perspective on Feeral Juicial Selection, Juicature, vol. 86, July-August 2002, where, at p. 13, the author observes that the blue slip proceure of the Senate Juiciary Committee has worke to ensure that home state senators of both parties, whether or not they are of the presient s party, have some say when juges are being nominate from their state. 23 A Presient is generally believe incline to avoi selecting a juicial nominee oppose by a home-state Senator of the Presient s party given the custom of senatorial courtesy, wherein the Senate, as a collegial boy, customarily supports Senators in isputes with the Presient over juicial appointments in their state. Two scholars have written that, as a result of this custom, Senators of the Presient s party who object to a istrict jugeship in their home state have a virtual veto over the nomination. Robert A. Carp an Ronal Stiham, Juicial Process in America, 3 e. (Washington: CQ Press, 1996), p. 247. 24 For a etaile examination of the proceures followe by Senate committees an the full Senate in consiering nominations in general, see CRS Report RL31980, Senate Consieration of Presiential Nominations: Committee an Floor Proceure, by Elizabeth Rybicki. For a iagrammatic overview of proceures followe by the Senate Juiciary Committee an the full Senate in consiering istrict an circuit court nominations, see CRS Report RS21735, U.S. District an Circuit Court Nominations: A Diagram of Customary Proceures, by Mitchel A. Sollenberger.

CRS-20 If the Senate votes to confirm the nomination, the Secretary of the Senate then attests to a resolution of confirmation an transmits it to the White House. 25 In turn, the Presient signs a ocument, calle a commission, officially appointing the iniviual to the court. The signe commission is then returne to the Justice Department for engraving the ate of appointment (etermine by the actual ay the presient signs the commission) an for the signature of the attorney general an the placing of the Justice Department seal. 26 Once the Presient has signe the commission, the incoming juge is eligible to be sworn into office. The new juge actually takes two oaths of office a juicial oath, as require by the Juiciary Act of 1789, an a constitutional oath, which, as require by Article VI of the Constitution, is aministere to Members of Congress an all executive an juicial officers. As with nominations in general, juicial nominations sometimes fail to avance through each proceural step in the appointment process. After referral to committee, a nomination might not receive a hearing or, after receiving a hearing, might not receive a committee vote on whether it shoul be reporte. Even if favorably reporte by committee, a nomination might not receive a vote by the Senate on whether to confirm. The majority leaer might not scheule a vote, or some Senators might oppose taking such a vote an a super-majority of three-fifths of the full membership of the Senate woul be neee to invoke cloture on the nomination. 27 If a nomination fails to receive a Senate vote on confirmation, it ultimately will be either withrawn by the Presient or returne to the Presient by the Secretary of the Senate upon a Senate ajournment or recess of more than 30 ays. 28 The Senate may, by unanimous consent, carry nominations over a recess of more than 30 ays. 25 If, on the other han, the Senate votes in the negative on whether to confirm, the nomination is efeate, an a resolution of isapproval is forware to the Presient. 26 Shelon Golman, Picking Feeral Juges: Lower Court Selection from Roosevelt Through Reagan (New Haven, CT: Yale University Press, 1997), p. 12. 27 See CRS Report RL32878, Cloture Attempts on Nominations, by Richar S. Beth an Betsy Palmer. 28 Rule XXXI, paragraph 6, Staning Rules of the Senate, provies, in part, that if the Senate shall ajourn or take a recess for more than thirty ays, all nominations pening an not finally acte upon at the time of taking such ajournment or recess shall be returne by the Secretary to the Presient an shall not again be consiere unless they shall again be mae to the Senate by the Presient.